Lead Opinion
Under the State’s Child Abuse and Neglect Law, local departments of social services are charged, along with law enforcement, with investigating allegations of child abuse. At the conclusion of an investigation, the department is to determine whether child abuse is “indicated,” “ruled out,” or “unsubstantiated.” The department may make a finding of indicated child sexual abuse if, among other things, an individual commits an act of sexual exploitation
In this case, the Respondent, a martial arts instructor, engaged in sexually explicit communications by email and telephone with a 15-year old student who regularly attended his class. All of this inappropriate behavior occurred outside of class while the instructor and student were in separate locations, usually their respective homes. Petitioner Wicomico County Department of Social Services found that the instructor had engaged in child sexual abuse under the statute. Following a hearing, an administrative law judge (“ALJ”) concluded that this finding should be reversed because the instructor did not have “care or custody or responsibility for the supervision of’ the student when she was not in his class and there was no evidence of inappropriate behavior on the instructor’s part while the student was in the instructor’s presence — a decision that the Circuit Court for Wicomico County and Court of Special Appeals affirmed on judicial review.
On the record before us, there was substantial evidence to support the decision of the ALJ and the lower courts. The instructor’s out-of-class behavior was clearly inappropriate and may have violated some other statute, but it did not constitute child sexual abuse under the current statutory definition.
I
Background
A. Statutory Framework
The law defining child sexual abuse and governing the investigation of allegations of such abuse is set forth in Maryland Code, Family Law Article (“FL”), § 5-701 et seq., and in regulations adopted by the Department of Human Resources pursuant to the statute. Under the statute, “abuse” includes “sexual abuse of a child.” FL § 5 — 701(b)(2). “Sexual abuse” is defined, in pertinent part, as “any act that involves sexual molestation or exploitation of a child by a parent or other person who has permanent or temporary care or custody or responsibility for supervision of a child.... ” FL § 5-701(x)(1).
Sexual Molestation or Exploitation.
(a) “Sexual molestation or exploitation” means sexual contact or conduct with a child.
(b) “Sexual molestation or exploitation” includes, but is not limited to:
(i) Exposure, voyeurism, sexual advances, kissing, or fondling;
(ii) Sexual crime in any degree including rape, sodomy, or prostitution;
(iii) Allowing, encouraging, or engaging in obscene or pornographic display, photogrаphing, filming, or depiction of a child in a manner prohibited by law; or
(iv) Human trafficking.
COMAR 07.02.07.02B(42).
When a local department of social services receives a report of child abuse, it (or appropriate law enforcement agency, or both) must investigate. FL § 5-706(b). Possible civil outcomes of the investigation are: (1) abuse is “indicated,” meaning “a finding that there is credible evidence, which has not been satisfactorily refuted, that abuse, neglect, or sexual abuse did occur”; (2) abuse is “ruled out,” meaning “a finding that abuse, neglect, or sexual abuse did not occur”; or (3) abuse is “unsubstantiated,” meaning “a finding that there is an insufficient amount of evidence to support a finding of indicated or ruled out.” FL § 5-701(m), (w), (y). The Department’s regulations elaborate on the evidence — or lack thereof — that supports each of those findings. See COMAR 07.02.07.12.
When the local department makes a finding of “indicated” or “unsubstantiated,” the department must inform the individual alleged to have abused the child of the finding, and the individual may request a contested case hearing under the State Administrative Procedure Act (“APA”), Maryland Code, State Government Article (“SG”), § 10-201 et seq. See FL § 5-706.1; COMAR 07.02.26. The ALJ may uphold the local department’s finding or modify it. COMAR 07.02.26.14. The individual or local department may seek judicial review of the ALJ’s decision in accordance with the APA. SG § 10-222; COMAR 07.02.26.14F.
Under this statute, the local department keeps records of individuals who have been found responsible for “indicated” child abuse, or for “unsubstantiated” child abuse for a specified period of time, but no further consequences necessarily follow. See FL §§ 5-707, 5-714.
The definitions of child abuse in the Family Law Article are similar to those that appear in the statute that creates criminal liability for child neglect and abuse. See Maryland Code, Criminal Law Article (“CR”), § 3-601 et seq. For example, criminal child abuse, which can be in the first or second degree depending on its severity, is abuse committed by a “parent, family member, household member, or other person who has permanent or temporary care or custody or responsibility for the supervision of a minor.” CR § 3 — 601(b)(1), (d)(1). This criminal provision thus uses the same phrase as the civil provision in the Family Law Article: a “person who has permanent or temporary care or custody or responsibility for the supervision of a minor.” This is unsurprising, as the civil and criminal provisions originated as parts of the same statute with the same set of definitions.
The pertinent facts, as they appear in the administrative record, are uncontested.
In November 2010, Ms. K. missed class due to illness, and Mr. A. texted her to ask how she was doing. He added that the class missed her and that he hoped that she felt better. After this, the two of them continued to exchange texts, at first occasionally but over time with increаsing frequency. Around February 2011, they also began to exchange emails. They created email addresses that did not identify themselves by name and that they used to communicate only with each other. Ms. K.’s 18-year old boyfriend, D. P., also had access to Ms. K.’s account.
Around February and March 2011, their conversations turned increasingly to sexual topics. By email, Mr. A. sent Ms. K. pictures of erotically posed women and told her that he would like her to pose for pictures, but she declined to do so. Ms. K. testified that she and Mr. A. had several telephone calls, including one in which he said that he wanted to teach her a martial arts kick in class that would cause her to lift her leg onto a railing so that he could “slyly touch [her] vagina.” In telephone calls and in emails, he told her that he existed on a spiritual plane and that if she “felt anything,” he was having sex with her on the spiritual plane. In another telephone call, which Ms. K. said lasted approximately five hours, Mr. A. said that he was “hard” and that he wanted to have sex
According to Ms. K., they continued to correspond in much the same vein until May 2011. Around May 19, 2011, Ms. K. showed her boyfriend a message from Mr. A. that said thаt the boyfriend was not good enough for Ms. K. About two weeks later, the boyfriend confronted Mr. A. in his office at his martial arts studio, with Ms. K. present. According to the boyfriend, Mr. A. alternately apologized for, attempted to excuse, and denied the inappropriate communications with Ms. K. After that confrontation, Mr. A. continued to communicate with Ms. K. outside of class, but he did so with declining frequency and without sexual content. At some point in 2011, Ms. K. attempted to switch out of Mr. A.’s class and by-November, she was no longer in his class.
The ALJ found that none of the sexually inappropriate conduct occurred during class. In class, Mr. A. did not touch or speak to Ms. K. in a sexual manner. She reported that he touched her hips with his hands at least once to help her with a position, but did no more.
C. Procedural History
Investigation and Finding
On November 3, 2011, the Wicomico County Department of Social Services (“Department”) received a report that Mr. A. had sent Ms. K. sexually explicit text messages and emails. On November 4, 2011, Amy Giordano, an experienced investigator for the Department, conducted recorded interviews with Ms. K. and her boyfriend about the allegations. Detective John Seichepine assisted in the investigation and obtained copies of some of the email exchanges between Mr. A. and Ms. K. and copies of their telephone records. Through his attorney, Mr. A. declined to be interviewed by the investigators. On January 6, 2012, after completion of the investigation, the Department, through Ms. Giordano, found Mr. A. responsible for indicated child sexual abuse based on the out-of-class communications.
Administrative Hearing
Mr. A. requested a hearing. On June 12, 2012, the ALJ held a contested case hearing. At the hearing, Mr. A.’s attorney argued that nothing inappropriate occurred while Ms. K. was under the care of Mr. A. at the martial arts school and that the sexually explicit communications recounted by Ms. K. occurred by telephone or electronically during off-hours when she was in her own home. The Department’s representative conceded that there was no actual sexual contact, but argued that the abuse lay in Mr. A.’s “grooming” of Ms. K. during the period he was her instructor.
Judicial Review
The Department filed a petition for judicial review in the Circuit Court for Wicomico County. On December 21, 2012, the Circuit Court held oral argument, and on March 22, 2013, it affirmed the decision of the ALJ. The Department appealed to the Court of Special Appeals, which also affirmed the ALJ in an unreported opinion.
The Department then filed a petition for a writ of certiorari with this Court, which we granted. The issue presented by the Department in its petition was whether the Department’s original finding could be supported by “grooming” behavior by Mr. A. during class — when Mr. A. had responsibility for the supervision of Ms. K. — -in conjunction with the out-of-class communications.
Following briefing and oral argument on that issue, we requested supplemental briefing on three questions:
1. In an ongoing instructor-student relationship, can “temporary care or custody or responsibility for supervision of a child” pursuant to FL § 5 — 701(x)(l) be established through remote electronic communications?
2. Can “temporary care” pursuant to FL § 5-701(x)(1) be established without the mutual consent, expressed or implied, of the one legally charged with the care of the child and of the one purportedly assuming the “temporary care”?
3. Does an instructor who has temporary care or responsibility for a child on a repeated, ongoing basis, commit child abuse within the meaning of FL § 5-701 by sexually explicit communications made via texts, telephone calls or other electronic means to the child, provided there exists a significant connection between the abusive conduct and the in-person care or responsibility?
The parties filed supplemental briefs and additional oral argument was held on those questions.
II
Discussion
A. Standard of Review
“When reviewing the decision of an administrative agency ... we review the agency’s decision directly, not the decision of the circuit court [or the intermediate appellate court].” Comptroller v. Science Applications Int’l Corp.,
B. Sexually Exploitative Conduct with a Child
Our task is to review the ALJ’s determination that child sexual abuse should be “ruled out” in this case. As indicated above, child sexual abuse means “any act that involves sexual molestation or exploitation of a child by a parent or other person who has permanent or temporary care or custody or responsibility for supervision of a child, or by any household or family member.” FL § 5-701(x)(1). There appears to be no question that Mr. A. engaged in sexually exploitative conduct with a child — i.e., an individual under the age of 18.
C. Caretaker Status
The remaining question is whether Mr. A. fell within the class of persons covered by the statute at the time of his inappropriate behavior — i.e., whether he was a parent, household or family member, or “other person who has permanent or temporary care or custody or responsibility for the supervision of a child.” FL § 5-701(x)(1). He was not Ms. K.’s parent, nor was he a household or family member, nor did he have any permanent responsibility for her. Therefore, the only possibility is that he was an “other person who has ... temporary care or custody or responsibility for supervision of’ Ms. K. It appears to be undisputed that he did have temporary responsibility for the supervision of Ms. K. during the time that she was in his martial arts class. However, the key question is whether he had such status in relation to Ms. K. at the time he engaged in sexually exploitative conduct. The ALJ concluded that he did not — a conclusion affirmed by the courts below.
Caretaker Status and Temporal Breaks
The resolution of this case depends to some extent on the construction of the pertinent statutory language — ie., what it means to have “temporary care or custody or responsibility for the supervision of’ a child. As always, we look to the “normal, plain meaning of the language of the statute.” Lockshin v. Semsker,
“Responsibility” in its common and generally accepted meaning denotes “accountability,” and “supervision” emphasizes broad authority to oversee with the powers of direction and decision.... Absent a court order or award by some appropriate proceeding pursuant to statutory authority, we. think it to be self-evident that responsibility for supervision of a minor child may be obtained only upon the mutual consent, expressed or implied, by the one legally charged with the care of the child and by the one assuming the responsibility.
[O]nce responsibility for the supervision of a minor child has been placed in a third person, it may be terminated unilaterally by a parent by resuming responsibility, expressly or by conduct. The consent of the third party in such circumstances is not required; he may not prevent return of responsibility to the parent. But, of course, the third person in whom responsibility has been placed is not free to relinquish that responsibility without the knowledge of the parent. For example, a sitter may not simply walk away in the absence of the parents and leave the children to their own devices.
Id.
The Court examined the significance of a temporal break in responsibility for supervision of a child in Anderson v. State,
This understanding of the statute nearly resolves this appeal. Mr. A. had responsibility for the supervision of Ms. K. when she was in his class, but that responsibility ended when she departed the martial arts studio and her parents resumed their responsibility — thereby terminating the implied consent of the parents and the instructor’s duty to supervise. Mr. A.’s subsequent inappropriate behavior in emails and telephone calls occurred when Mr. A. did not have responsibility for her supervision during a temporal break in the teacher-student relationship, when Ms. K. was usually in her own home. By the time
The Department has essentially conceded this but argued, both before the ALJ and on appeal, that there is more here—ie., that Mr. A. engaged in grooming behavior in class that linked the time he was responsible for Ms. K.’s supervision to his sexually explicit out-of-class communications with her.
Grooming
The Department contends that Mr. A.’s interactions with Ms. K. during, or immediately after, class constituted systematic “grooming” designed to make her susceptible to sexual exploitation. It points to her testimony that Mr. A. paid special attention to her in class and sometimes spoke to her about personal matters. The Department describes this as “inextricably intertwined with his conduct outside of class” and “part of one continuous chain of events.” The Department suggests that
Although the Department in its closing argument at the administrative hearing urged the ALJ to find that grooming occurred,
In their out-of-class communications, Mr. A. spoke at least once about the possibility of engaging in sexual contact during class, such as touching Ms. K. inappropriately while she ostensibly practiced a kick, but he apparently never acted on that idea. The Department also points out that Mr. A. at least once “put his hands on [Ms. K.’s] hips during class,” but martial arts classes frequently involve this sort of contact and even Ms. K. said that it was to assist her with a position in class.
We cannot say that the ALJ’s conclusion is clearly erroneous or unsupported by the evidence. From our review of the record, there is nothing like the in-school conduct and communications of the defendant in Walker v. State,
Of course, as Walker indicates, context is not irrelevant. In some circumstances, actions that, by themselves, do not seem sexually exploitative might, in context, be so. For example, seemingly innocuous actions may nonetheless be sexually exploitative if they meet the standards described in Walker: they are sexual in context, and the adult performing the actions receives a benefit from them.
The Department urges that this obstacle may be overcome by adopting an expansive understanding of child sexual abuse in order to protect children. See, e.g., Tribbitt v. State,
However, the Department has not pointed to a single action (or course of actions) that Mr. A. took during class that, in context, is even partly sexual exploitation. Being “really friendly” to a student is not sexual exploitation. Talking to a student about how she is doing and what she has done that day is not sexual exploitation. Touching a student’s hips during a martial arts class to help the student with a position ordinarily is not sexual exploitation.
The Department argues that Mr. A.’s intent behind his actions during class was to prepare Ms. K. for out-of-class sexual exploitation. The Department contends that this intent means that his in-class behavior “involves” sexual exploitation under the statute, even if it is not itself sexually exploitative. We do not rule out this possibility — that is, that an act can “involve” sexual exploitation because it is performed specifically in order to facilitate sexual exploitation in the future. But it is not enough to show that a teacher built trust with the student during class and subsequently attempted to sexually exploit the student outside of class. There would need to be a showing that the teacher took some specific action during class with the specific intention of facilitating sexual exploitation outside of class (rather than, for example, building trust merely in order to facilitate the physically demanding and potentially dangerous martial arts class, as any teacher might do). The fact that Mr. A. did try to sexually exploit Ms. K. outside of class is not, by itself, enough to prove his intentions during class. In any event, the record reports very little of what happened during class.
If Mr. A. had given clear indications of romantic feelings during class, then the outcome might be different. See Walker,
D. Summary
Mr. A. engaged in sexually suggestive telephone and electronic communications with a 15-year-old girl. He thus engaged in sexual exploitative conduct with a child. However, there was substantial evidence to support the AL J’s conclusion that Mr. A. did not have responsibility for the supervision of Ms. K. at the time of this conduct — which occurred outside of class while Mr. A. and Ms. K. were not in each other’s presence. Mr. A. did have responsibility for the supervision of Ms. K. while she was at the martial arts school, but none of the sexually exploitative conduct occurred at that time. Although grooming behavior in class could, in conjunction with sexually exploitative conduct outside of class, support a finding of indicated child sexual abuse, the ALJ’s conclusion that there was insufficient evidence for such a finding here was not clearly erroneous.
We note that the Deрartment relies on a few out-of-state cases construing statutes that appear to be broader than the Maryland statute. In some states, all that is required is that the alleged abuser be in a “position of trust” with respect to the alleged victim. See Pellman v. People,
Ill
Conclusion
For the reasons set forth above, there is substantial evidence to support the ALJ’s determination that the Department should modify its finding from “indicated” to “ruled out.”
Judgment of the Court of Special Appeals Affirmed. Costs to be Paid by Petitioner.
ADKINS, WATTS, and HARRELL, JJ., dissent.
Notes
. The Department's regulations include a similar definition of child abuse in which the term ''caretaker” is substituted for the statutory phrase "other person who has permanent or temporary care or custody or responsibility for supervision of a child.” COMAR 07.02.07.02B(7). The regulations define "caretaker” somewhat more broadly than the phrase that it replaces:
(4) Caretaker.
(a) "Caretaker” means an individual who has, or is known to a child through having had, permanent or temporary care, custody, or responsibility for supervision of the child.
(b) "Caretaker” includes, but is not limited to, a stepparent, foster parent, guardian, custodian, or employee or volunteer in a facility or program caring for a child.
COMAR 07.02.07.02B(4) (emphasis added). This elaboration of the statutory definition was a matter of debate before the ALJ and courts below, although it is not at issue before us and the Department has disclaimed reliance upon it. See footnote 5 below.
. The civil and criminal provisions relating to child abuse were originally enacted as part of the same statute and codified in former Article 27 of the Maryland Code. Chapter 221, Laws of Maryland 1966, then codified in Maryland Code, Article 27, § 11 A. That law specified civil and criminal consequences for the same conduct. It was later recodi-fied as Article 27, § 35A. Chapter 500, Laws of Maryland 1970. A definition of "abuse” was added to the statute in 1973. Chapter 835, Laws of Maryland 1973. A definition of “sexual abuse” was added the following year. Chapter 554, Laws of Maryland 1974. The civil and criminal consequences thus related to conduct based on the same definitions.
In 1984, as part of the creation of the Family Law Article, the civil provisions were moved to the new Family Law Article. Chapter 296, Laws of Maryland 1984. Identical versions of the pertinent original definitions in Article 27 were included with the civil provisions in the Family Law Article and were also retained with the criminal provisions in Article 27. The criminal provisions were later recodified as part of the new Criminal Law Article. Chapter 26, Laws of Maryland 2002. The provision concerning child sexual abuse in both the Family Law Article and the Criminal Law Article both continue to describe conduct by a "person who has permanent or temporary care or custody or responsibility for the supervision of” a child. See CR § 3-602(b); FL § 5-70 1(x).
. The evidence at the administrative hearing in this case consisted of the testimony of Ms. K., her boyfriend, the investigating police officer, and the representative of the local department who received and investigated the complaint. The Department’s investigative file, consisting largely of interview reports and a few emails retrieved from Ms. K.’s phone, was admitted in evidence, along with a video recording of the interviews of Ms. K. and her boyfriend. Although Mr. A. did not stipulate to the facts, he elected not to testify at the hearing and, in this civil context, one may infer, as the ALJ apparently did, that the events recounted by Ms. K. and the other witnesses are true.
. The Court of Special Appeals granted a motion to refer to B.A. by his initials. We also use initials to refer to certain other individuals to protect their privacy.
. This "grooming” theory was not articulated in any detail at the administrative hearing, but the Department has elaborated on it in later court filings. See footnote 10 below.
At the administrative hearing, the Department also argued that Mr. A. was a "caretaker" of Ms. K. under COMAR 07.02.07.02B(4)(a) and (b). See footnote 1 above. The AU concluded that this regulation was excessively vague and improperly extended the definitions in FL § 5-701(x) to individuals who did not have contemporaneous care, custody, or responsibility for the supervision of a child. The ALJ consequently declined to apply the definition of "caretaker” in COMAR. After the Circuit Court and the Court of Special Appeals agreed with the ALJ that this regulation exceeded the reach of the statute, the Department abandoned its reliance on the regulation in this Court, so we do not consider it.
. That regulation authorizes an ALJ, after a hearing, to order a local department to modify a finding of child abuse.
. FL§ 5-701(e).
. In her dissent, Judge Adkins suggests that we might construe the definition of "sexual abuse” — and, more specifically, its description of caretaker status — more broadly than the Court has construed its criminal counterpart in cases such as Anderson. Tempting as this approach might be, it fails because the definitions in the civil and criminal provisions originated as one. See footnote 2 above. This is not to say civil and criminal enforcement are in all respects the same. For a variety of reasons, it may be easier to prove child abuse in a civil proceeding than in a criminal prosecution. The State has a lighter burden of proof in a civil case; unlike a criminal case, adverse inferences may be drawn from a defendant's silence; and the formal rules of evidence do not apply in a civil administrative proceeding. But the legislative DNA of the definition of "child abuse” in the two statutes is identical.
In her dissent, Judge Watts argues that one may have "temporary care” of a child by engaging in remote communications with the child — e.g., by sending an email or a letter that expresses concern or by providing psychological comfort to the child. She offers several reasons for this position. She points out that this would comport with a dictionary definition of "care,” which includes providing psychological comfort. In addition, she argues that "care” must be read in this fashion or else it will be redundant with "responsibility for supervision” elsewhere in the statute. She also urges that it would be consistent with the underlying legislative purpose of protecting children.
Perhaps this idea would have some merit if the statute said "provide care” or "offer care” instead of "has ... care” which, like “has ... custody,” denotes a greater responsibility. In any event, as Judge Watts concedes, the Court has already intеrpreted "temporary care or custody” as equivalent to "in loco parentis," which is inconsistent with Judge Watts’ suggested reading of the phrase, and has construed "responsibility for supervision” to cover one who is not in loco parentis but who nonetheless has responsibility for a child. Thus, these concepts are not redundant.
In any event, the approach suggested in Judge Watts' dissent would go well beyond this Court’s past decisions that sought to interpret the child abuse statutes to carry out the purpose of protecting children consistent with the statutory text and constitutional principles. See Pope,
. The Department also agrees that the requisite caretaker status could not ordinarily be established by remote communication alone, although it might be in particular circumstances — such as when a teacher home schools children by video link.
. During its argument to the ALJ, the Department did not explain what particular conduct during class would constitute grooming. During the evidentiary portion of the administrative hearing, the investigating officer identified the email and text messages between Mr. A. and Ms. K. — which occurred outside of class — as the grooming behavior. It appears that the investigating officer viewed the out-of-class communications as grooming behavior for in-person sexual exploitation that ultimately did not materialize.
. Touching a student’s hips could be sexual exploitation if, for example, the teacher touched them inapproрriately, but there is no indication of that here.
. It may be that an appropriate finding, when there is insufficient evidence that an individual who has had responsibility for the supervision of a child continued to have that responsibility at a time when the individual engaged in sexually exploitative conduct, is "unsubstantiated” rather than "ruled out.” However, neither party in this case suggested that the Department's finding should be modified to "unsubstantiated.”
. The regulation that the Department disclaimed in this case also might be a starting point for such a statute. See footnote 1 above.
Dissenting Opinion
dissenting.
Respectfully, I dissent in part from the Majority’s opinion and holding. I concur with Judge Watts’s Dissent (“Watts Dissent”), but depart from some of its reasoning. The Watts Dissent relies heavily on our decision in Anderson v. State,
But the Majority never reckons with the material difference between Anderson and this case — namely, that the sexual abuse occurred when the defendant was driving the child home from school, and doing so, we held, with the implied consent of the child’s mother. Implied consent was the
We then extended the reach of the implied consent doctrine, reasoning that the absence of any temporal break between the teacher’s supervision at school and continued supervision while driving the child home, created an “ ‘indivisible, ongoing relationship.’ ” Id. at 294-96,
Here, unlike Anderson, there was a break between B.A.’s role as instructor at the martial arts school, and he never undertook to take the child home. His inappropriate sexual advances to the minor by texts and during telephone calls occurred remotely, in the evening. Accordingly, the implied parental consent to transport a child home from school that was central to our decision in Anderson simply does not sustain us here.
I think the statute reaches B.A.’s conduct not by a theory of implied parental consent, but by a settled rule of statutory construction — that a civil, remedial statute, if ambiguous, should be interpreted in favor of furthering the legislative remedial purpose. See Opert v. Crim. Injuries Comp. Bd.,
Like Judge Watts’s dissent, my analysis depends on the strength of a teacher’s relationship with, and influence on, the child, which may be presumed. The authority exercised by this instructor, together with the student’s desire to excel in this martial arts program could bolster that presumption. The telephonic communications would support a conclusion that B.A. repeatedly drew upon the martial arts culture, calling her a “warrior,” and saying that he was “very proud that [she was] working out so hard,” and that “You ARE strong ... among many other wonderful traits.” (Ellipsis in original.) He also offered, more than once, to drive her to a workshop on tai chi. In another email, he wrote “I’m sorry that you got hurt in class. I ... can only hope that you’re alright? ... [Y]ou’re beyond beautiful and wonderful.” He exerted his authority as a martial arts instructor by threatening to discipline V.K’s boyfriend, writing that the boyfriend’s jealousy was a problem, and that B.A. “[could] not allow this type of vibe/attitude in my work[ ]place. He’s either going to fix it or I’m talking to him. And if it still doesn’t change I’m going to be forced to not allow him to come anymore[.]”
V.K. responded to some of his emails and texts and engaged in a five-hour phone conversation with him. It is reasonable to conclude that she would not have done so, absent the student-teacher relationship. In short, there was more than enough evidence to support a conclusion that there was a substantial connection between the martial arts instruction and the telephonic sexual abuse. This leads me to a conclusion that the ALJ erred in concluding that because there was “a clear temporal break in the taekwondo-instructor/taekwon-do-student relationship when the sexual correspondence took place ... the local department failed to show an instructor-student relationship between” B.A. and V.K. when the sexual communication occurred. To be sure, there was a temporal break, but in this civil case, that, on its own, does
In conclusion, unlike the Majority, I would vacate the judgment and opinion of the Court of Special Appeals, and remand to that Court with instructions to remand to the Circuit Court for further remand to the ALJ to make additional findings not inconsistent with this opinion.
. This statute is not nearly as restrictive of a registrant’s conduct, nor so public, as the sexual registry required after conviction of certain sexual abuse crimes. We described the severity of that statute in Doe v. Department of Public Safety & Coirectional Services,
Petitioner currently must report in person to law enforcement every three months, give notice to law enforcement of his address and any changes of address, and notify law enforcement before being away from his home for more than seven days.... Furthermore, he must disclose to the State a significant amount of information, some of which is highly pеrsonal, including: his employment address; information about his conviction; his social security number; his email address and computer log-in names; information about vehicles he often uses, including those not owned by him; his finger prints and palm prints; all "identifying factors, including a physical description,” and an updated digital image of himself. See C.P. §§ 11-706, 11-707 (2001, 2008 Repl. Vol., 2012 Cum. Supp.). Additionally, other than to vote, Petitioner is prohibited from entering onto real property that is used as a school or a family child care center licensed under Title 5, Subtitle 5 of the Family Law Article, without first obtaining permission.... If Petitioner fails to comply with these requirements, he faces terms of imprisonment, depending on the violation, of up to three or five years.
If we were dealing with that public sex offender registry, our conclusions here may be different.
Dissenting Opinion
dissenting, in which HARRELL, J., joins.
Respectfully, I dissent. The Majority narrowly construes a statute that the General Assembly enacted to protect children — the most vulnerable members of society — from sexual predators. In doing so, the Majority chips away at the legal deterrents against sexual exploitation of children.
In addition to exposing children to harm, the Majority Opinion is non-forward-looking. In today’s digital age, with increasing frequency, children engage in remote communications (e.g., e-mails, telephonic conversations, or text messages) with people who have permanent or temporary care, custody, or responsibility for the supervision of them.
This issue in this case is whether a teacher can commit “sexual abuse” as defined by Md. Code Ann., Fam. Law (1984, 2012 Repl. Vol.) (“FL”) § 5-701(x)(l) (“ ‘Sexual abuse’ means any act that involves sexual molestation or exploitation of a child by a parent or other person who has permanent or temporary care or custody or responsibility for supervision of a child, or by any household or family member.”) by sexually exploiting a student through remote communications.
The Majority narrowly construes FL § 5-701(x)(1) so that it applies only to in-person contact between a child student and a teacher who is a sexual predator. I respectfully disagree with the Majority’s reasoning, and would hold that a teacher can commit “sexual abuse” as defined by FL § 5-701(x)(1) by sexually exploiting a student through remote communications.
This case’s material facts are undisputed. On January 11, 2012, the Wicomico County Department of Social Services (“the Department”), Petitioner, notified B.A.,
On July 20, 2012, the ALJ issued a decision in which the ALJ found the following facts, which I summarize. From October 2010 through Spring 2011, V.K.
The ALJ admitted into evidence the following e-mails between B.A. and V.K. On February 28, 2011, B.A. e-mailed V.K. to state: “How are you doing? It would be good to hear from you[.]” On March 31, 2011, B.A. e-mailed V.K. to state: “I adore you so much.... I’m certain! ]ly a lucky guy.”
On May 5, 2011, B.A. e-mailed V.K. to state: “I’m very proud that [you’re] working out so hard!.]” Later that day, V.K. replied to state: “Thank you. I wanna be strong!.]” Still later that day, B.A. replied to state: “You ARE strong ... among many other wonderful traits!” (Ellipsis in original).
On May 7, 2011, B.A. e-mailed V.K. to state:
Hi Beautiful Warrior! Been thinking about [yo]u a lot.... This Friday I leave for Tai Chi weekend workshop. Wish [yo]u were going. There’s still room if [yo]u wanna go up. I’ll drive.... [H]ow was [yo]ur day? What do [yo]u do for fun? .... [D]oes [your boyfriend] ever smile, joke[,] or laugh ... ? He always seems so serious[.] I would LOVE to hear from [yo]u MUCH MORE. Tell me more about [yo]ur life, thoughts, [yo]ur inner workings, etc.
(Paragraph breaks omitted). On May 8, 2011, V.K. e-mailed B.A. tо tell him what she did for fun and to state: “[My boyfriend] smiles A LOT.... He just doesn’t smile around you. [H]e feels [that] you like me a little to[o] much.” Later that day, B.A. e-mailed V.K. to state: “[E]ven b[efore you] started training!, your boyfriend] was serious and somber[,] more so than any other student.” Still later that day, V.K. emailed B.A. to state: “[My boyfriend] thinks [that] you have a thing for me[.]” Still later that day, B.A. e-mailed V.K. to state: “[You’re] so sweet[.]”
At some point on May 8, 2011, V.K. e-mailed B.A. and attached a photograph of another female in a prom dress. B.A. replied to state: “I thought you were sending me pics of you. (B[y the way]: That would be nice and welcomed ... hint)[.]” (Ellipsis in original). V.K. replied to state: “I don’t think [that] pictures would be appropriate[.]”
On May 12, 2011, B.A. e-mailed V.K. to state:
I’m sorry that you got hurt in class. I ... can only hope that you’re alright? .... [Y]ou’re beyond beautiful and wonderful[,] ... and[,] every time I see you[,] my heart feels enlivened.... [D]oes [your boyfriend] know[ that] we write, and particularly that we write using these aliases[4 ] ... ? .... [D]ue to our “age differences” and our “professional relationship!,]” this could be seenas weird to virtually anyone.... I would erase all of our past correspondences NOW[ — ]and[,] from now on[,] use no personally identifying questions or comments unless you immediately erase them.... If you wish to share our e-mails with others!,] ... then it would be prudent to ONLY discuss “normal or professional” things using our original “normal” e-mail addresses .... Tonight[, your boyfriend] was very odd at the end of class.... [Y]our varying moods and cavalier attitude when I do see you do[ ]n’t necessarily instill the utmost confidence.... I am an extremely private man[,] and [I] don’t want any[]thing about my life to be shared with anyone EVER unless I specifically say otherwise.
(Paragraph break omitted). Later that day, B.A. e-mailed V.K. to state:
Not sure why all of a sudden [your boyfriend’s] jealousy has reached such a state that he’s acting that way towards me[.] What are you saying to him? ... [H]e is just going to have to deal with guys looking at his girlfriend because she is beautiful.... If he can’t handle it[,] then maybe he should look for a girl who’s not as attractive.... I don’t want to hear anything about m[y] being “inappropriate” since I am older or a teacher.... I cannot allow this type of vibe/attitude in my work[ ]place. He’s either going to fix it[,] or I’m talking to him. And if it still doesn’t change[,] I’m going to be forced to not allow him to come anymore!,] since it will hurt our school.... [I]f you can fix it without causing more problems[,] ... then please do so.
(Paragraph breaks omitted).
The ALJ concluded as a matter of law that B.A.’s sexually explicit remote communications with V.K. constituted sexual exploitation; however, the ALJ reasoned that, because the sexual exploitation occurred via remote communications, B.A. was not providing “temporary care” for V.K. when he engaged in the sexual exploitation. Accordingly, the ALJ concluded as a matter of law that the Department had not met its burden to prove that B.A. was responsible for indicated “child abuse” as defined by FL § 5-701(x)(l), and the ALJ modified the Department’s finding that B.A. was responsible for indicated child abuse to “ruled out.”
The Department petitioned for judicial review, and the Circuit Court for Wicomico County affirmed. The Department appealed, and the Court of Special Appeals affirmed in an unreported opinion. The Dеpartment filed a petition for a writ of certiorari, which this Court granted. See Wicomico Cnty. Dep’t of Soc. Servs. v. B.A.,
No reported Maryland opinion addresses the scope of the phrase “sexual abuse” as defined by FL § 5-701(x)(1) (“ ‘Sexual abuse’ means any act that involves sexual molestation or exploitation of a child by a parent or other person who has permanent or temporary care or custody or responsibility for supervision of a child, or by any household or family member.”). This Court, however, has addressed — and broadly construed — the scope of the term “abuse” as used in the statutes that have criminalized child abuse. Specifically, in Anderson v. State,
This Court’s broad construction of the statute that criminalized child abuse in Anderson,
Here, recognizing that FL § 5-701(x)(1)’s purpose, like CR § 3-602’s purpose, is to “target the ever-shifting manner in which some people will target and abuse children[,]” Walker,
As used in FL § 5 — 701(x)(1), the term “care” is not limited to in-person contact between a teacher and a student. Otherwise, the term “care” would be impermissibly redundant with the phrase “responsibility for supervision.” See Woznicki v. GEICO Gen. Ins. Co.,
The Majority states that “[t]his Court has previously said that ‘temporary care or custody’ is equivalent to ‘in loco parentis,’ a relatively restrictive classification that ‘arises only when one is willing to assume all the obligations and to receive all the benefits associated with one standing as a natural parent to a child.’ ” Maj. Op. at 134,
In Bowers,
the failure of the statute to include any definition of the phrase “temporary care or custody” creates a[n] ambiguity of constitutional dimension, since neither [the defendant] nor others similarly situated would have had any way of knowing whether they fell within the class of persons [who are] subject to prosecution under the [statute].
Id. at 119,
[T]he [ ] General Assembly [ ] intended that the statute here apply to persons who stood in [loco parentis] to a child. Had the [General Assembly] wished to narrow application of the child abuse [statute] to those who had been awardedcustody or control by court order, it could readily have done so in explicit language to that end.
Id. at 130,
B.A.’s many e-mails to V.K. and displays of concern for V.K’s welfare constituted the administration of psychological comfort to — i.e., “care” of — V.K. On three occasions, B.A. emailed V.K. to ask how she was doing. In one such e-mail, B.A. stated: “I’m sorry that you got hurt in class[.]” On another occasion, B.A. e-mailed V.K. to state: “I’m very proud that [you’re] working out so hard[.]”
Just as the term “care” is not limited to in-person contact between a teacher and a student, the term “care” is not limited to contact that occurs when the student, the teacher, or both are on school grounds. This Court has already held that a teacher can be responsible for supervising a student— and thus, the teacher can commit sexual abuse of the student — when both the teacher and the student are outside the school grounds. See Anderson,
Just as a teacher is able to exert authority, influence, or control over a student in person while both are outside the school grounds, the teacher is able to exert authority, influence, or control over the student via remote communications while both are outside the school grounds. In any remote communication that calls for a response — even something as simple as an e-mail in which a teacher asks: “How are you?” — the teacher, by virtue of the teacher-student relationship, obligates the student to share information and spend time and effort, however little, on a response. The teacher-student relationship plays an even greater role where the teacher directly or indirectly refers to the relationship — for example, a teacher could e-mail a student
Significantly, my conclusion is supported by FL § 5-701(x)(1)’s purpose, which is to protect vulnerable children from sexual predators. See Walker,
Additionally, my conclusion is consistent with FL § 5-701(x)(1)’s legislative history. The first statute to use the phrase “temporary care or custody” in illegalizing harm to a minor was Md.Code Ann., Art. 27 (1957, 1963 Supp.) (“Art.27”) § 11A (Assault on Child), which the General Assembly enacted in 1963. Art. 27 § 11A stated: “Any parent, adoptive parent!)] or other person who has the permanent or temporary care or custody of a minor child under the age of fourteen years who maliciously beats, strikes, or otherwise mistreats[ ] such minor child to such degreе as to require medical treatment for such child shall be guilty of a felony[.]” Obviously, the acts that Art. 27 § 11A illegalized (beating, striking, and physically mistreating) could occur only in person; however, eleven years later, the General Assembly broadened the category of illegal harm to a minor by adding sexual exploitation without physical injury. See Md.Code Ann., Art. 27 (1957, 1971 Rep. Vol., 1974 Supp.) §§ 35A(a) (“Any parent, adoptive parent[,] or other person who has the permanent or temporary care or custody or responsibility for the supervision of a minor child under the age of eighteen years who causes abuse to such minor child shall be guilty of a felony[.]”); 35A(b)(7)(B) (“ ‘Abuse’ shall mean ... any sexual abuse of a child, whether physical injuries are sustained or not.” (Emphasis added)); 35A(b)(8) (“ ‘Sexual abuse’ shall mean any act or acts involving sexual molestation or exploitation!)]” (Emphasis added)).
It would be illogical to conclude that the General Assembly broadened the category of illegal harm to a minor to include sexual exploitation without physical injury, yet intended to limit such illegal harm to in-person contact between an adult and a child. Of course, in 1974, many modern methods of remote communication, including e-mail, text messaging, and instant messaging, were not in widespread use; however, other methods of remote communication, such as telephonic conversation and letter writing, existed in 1974 and remain in widespread use. Indeed, even today, sexual predators use these older methods of remote communication to contact
My conclusion, of course, would not alter the principle that “responsibility for supervision of a minor child may be obtained only upon the mutual consent, expressed or implied, by the one legally charged with the care of the child and by the one assuming responsibility.” Anderson,
‘Responsibility’ in its common and generally accepted meaning denotes ‘accountability,’ and ‘supervision’ emphasizes broad authority to oversee with the powers of direction and decision.... Absent a court order or award by some appropriate proceeding pursuant to statutory authority, we think it to be self-evident that responsibility for supervision of a minor child may be obtained only upon the mutual consent, expressed or implied, by the one legally charged with the care of the child and by the one assuming responsibility. In other words, a parent may not impose responsibility for the supervision of his or her minor child on a third person unless that person accepts the responsibility, and a third person may not assume such responsibility unless the parent grants it.
Id. at 293,
For the above reasons, a teacher commits “sexual abuse” as defined by FL § 5-701(x)(1) where the teacher takes advantage of an ongoing teacher-student relationship to exert authority, influence, or control over the student via sexually exploitative remote communications. I note that my conclusion is expressly tied to a teacher-student relationship that is “ongoing,” and I do not express an opinion on whether FL § 5-701(x)(1) applies where there is a former teacher-student relationship or no teacher-student relationship.
This case’s facts provide a prime example of how a teacher can commit “sexual abuse” as defined by FL § 5-701(x)(1) where the teacher takes advantage of an ongoing teacher-student relationship to exert authority, influence, or control over the student via sexually exploitative remote communications.
All of B.A.’s relevant e-mails to V.K. occurred while B.A. was teaching classes to V.K. up to three times per week, and many of B.A.’s e-mails to V.K. were inextricably intertwined with the ongoing teacher-student relationship. For example, in one e-mail, B.A. referred to V.K. as a “warrior,” which, ostensibly, was a reference to the fact that V.K. was a student of martial arts. On a related note, in the same e-mail, B.A. offered to drive V.K. to a workshop on tai chi, which is an exercise that is similar to martial arts. B.A. once e-mailed V.K. to state that her boyfriend “always seem[ed] so serious” at the school. Later, B.A. e-mailed V.K. to state that, “even b[efore you] started training[ at the school, your boyfriend] was serious and somberf,] more so than any other student.” (Emphasis added). Still later, B.A. e-mailed V.K. to state:
I’m sorry that you got hurt in class.... [D]ue to ... our “professional relationship[,]” this could be seen as weird to virtually anyone.... Tonight[, your boyfriend] was very odd at the end of class.... [Y]our varying moods and cavalier attitude when I do see you [at the school] dо[ ]n’t necessarily instill the utmost confidence.
(Emphasis added) (paragraph breaks omitted). On the same day, B.A. e-mailed V.K. to state:
Not sure why all of a sudden [your boyfriend’s] jealousy has reached such a state that he’s acting that way towards me [at the school].... I don’t want to hear anything about m[y] being “inappropriate” since I am ... a teacher.... I cannot allow this type of vibe/attitude in my work[ ]place.... I’m going to be forced to not allow him to come anymore since it will hurt our school[:]
(Emphasis added) (paragraph breaks omitted). Additionally, during a telephonic conversation, B.A. told V.K. that he wanted to touch her vagina while he was teaching her to do a kick during martial arts class.
B.A. utilized the ongoing teacher-student relationship to exert authority, influence, or control over V.K. by sending remote communications that either called for responses or included instructions to V.K. In one e-mail, B.A. offered to drive V.K. to a workshop. In one e-mail and one text message, B.A. asked V.K. for a photograph of her. In three emails, B.A. asked V.K. how she was doing. In one such email, B.A. stated: “It would be good to hear from you”; in another such e-mail, B.A. stated: “I would LOVE to hear from [yo]u MUCH MORE. Tell me more about [yo]ur
The fact that V.K. responded to many of B.A.’s remote communications offers even further support for the conclusion that B.A.’s remote communications constituted exertions of authority, influence, or control over V.K. In replies to B.A.’s emails, V.K. provided information about her life in general and her boyfriend in particular. In one e-mail, V.K. thanked B.A. for a compliment. In another e-mail, V.K. declined to provide a photograph of herself. On one occasion, after B.A. telephoned V.K. at approximately midnight, V.K. participated in the telephonic conversation for approximately five hours.
In sum, B.A., while providing “temporary care” for V.K., took advantage of the ongoing teacher-student relationship to exert authority, influence, or control over V.K. via remote communications. As the ALJ concluded (and as B.A. fails to dispute), B.A.’s sexually explicit remote communications with V.K. — namely, informing her that he wanted her to pose in an erotic manner, propositioning her for sexual intercourse, and telling her during a telephonic conversation that he was masturbating — constituted sexual exploitation. Thus, the ALJ erred in concluding as a matter of law that the Department had not met its burden to prove that B.A. was responsible for indicated “sexual abuse” as defined by FL § 5-701(x)(1).
At oral reargument, the Department’s counsel stated that she did nоt believe that B.A. had temporary care of V.K. when B.A. sexually exploited V.K. through remote communications. Of course, a party’s erroneous concession of law does not bind this Court, which independently decides legal issues. See In re Heather B.,
Although CR § 3-324 (Sexual Solicitation of Minor) enables criminal prosecutions of sexual predators who use remote communications to prey on children, FL § 5-701 is the only means by which a
For the above reasons, respectfully, I dissent.
Judge Harrell has authorized me to state that he joins in this opinion.
. The Court of Special Appeals granted a motion to refer to B.A. by his initials.
. To protect her privacy, I refer to V.K. by her initials.
. The record reveals that V.K. had also taken B.A.’s martial arts classes when she was younger.
. B.A. and V.K. e-mailed each other using e-mail accounts that did not identify them by name.
. At the timе, the statute was codified as Md.Code Ann., Art. 27 (1957, 1996 Repl. Vol., 2001 Supp.) § 35C(b), which stated: “A parent or other person who has permanent or temporary care or custody or responsibility for the supervision of a child or a household or family member who causes abuse to the child is guilty of a felony[.]”
. ''[A]n agency’s legal interpretation of [a] statute [that] it administers ... is entitled to some deferencef.]” Charles Cnty. Dep’t of Soc. Servs. v. Vann,
. "Care” has also been defined as "[t]he provision of what is necessary for the health, welfare, maintenance, and protection of someone[.]” Care, Oxford Dictionaries (Oxford University Press 2015), http://www. oxforddictionaries.com/us/definition/american_englislVcare [https:// perma.cc/LK4Q-GZ2E]. This definition does not imply that the care must be provided in person.
. Additionally, in three e-mails, B.A. called V.K. “beautiful.” B.A. also complimented V.K. via e-mail by calling her “attractive,” "sweet,” and "wonderful”: stating that V.K. was “strong ... among many other wonderful traits”; stating that, "every time” B.A. saw V.K., his "heart fe[lt] enlivened”; stating that B.A. "adore[d V.K.] so much”; and stating that B.A. was "certain[]ly a lucky guy.” (Ellipsis in original).
. In 1970, the General Assembly recodified Art. 27 § 11A as Art. 27 § 35A.
. For example, the AU posed a hypothetical that was similar to the following. A thirteen-year-old tutors an eight-year-old neighbor. The tutor moves away and has no contact with the other minor until six years later, at which point the two begin a consensual sexual relationship at ages nineteen and fourteen, respectively. My conclusion would not apply to this scenario because the sexual relationship did not occur while the teacher-student relationship was ongoing.
. At initiаl oral argument, the Department seemingly contended that, even if a teacher did not engage in any sexually explicit or suggestive activity with a student at any time, the teacher might have engaged in sexual exploitation by forming a close relationship with the student. As Judge Battaglia aptly pointed out, "that leads you down a very dangerous path.” Teachers often form close relationships with students without any intention of grooming the students for sexual activity. Clearly, I do not conclude that simply forming a close relationship with a student alone constitutes sexual exploitation.
. This case’s material facts are clear and undisputed; stated otherwise, I do not know of any factual gaps in the record that require additional consideration by the ALJ. In particular, the e-mails between B.A. and V.K. speak for themselves. The ALJ concluded that B.A.’s sexually explicit remote communications with V.K. constituted sexual exploitation, and, in this Court, B.A. does not dispute that conclusion. The teacher-student relationship between B.A. and V.K. was ongoing at the time of the sexual exploitation. And, as discussed above, B.A. exerted influence, authority, or control over V.K. Thus, the undisputed facts establish that B.A., while providing "temporary care,” used an ongoing teacher-student relationship to exploit V.K. through remote communications.
. At oral reargument, the Department’s counsel stated:
I can tell you, no prosecutor is going to pick up this case. There’s too much to do out there to pick up a case where a teacher’s maybe exploiting a child. I mean, that — the law enforcement went very far and investigated it, but these are the kinds of cases that don’t get prosecuted. So, the only record of them, frequently, is the local department’s ability to maintain its files.